KWADWO AZIE vs. HARRISON ODENKE ADDO AND EMMANUEL N. Y. TACKIE-YARBOI [2014]DLCA8923

Date	2014-03-13
Suit No.	CIVIL APPEAL NO. H1/ 111/2013
Citation No.	[2014]DLCA8923

MARFUL- SAU JA (PRESIDING)

ACQUAYE JA

SAEED GYAN JA

BABA AVIO FOR PLAINTIFFS/ APPELLANTS

BLISS NII AMARTEI FOR DEFENDANTS/ RESPONDENTS

[2014]DLCA8923
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													<main id="main" class="content" style="min-height: 60rem" >KWADWO AZIE<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>HARRISON ODENKE ADDO AND EMMANUEL N. Y.
TACKIE-YARBOI<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. H1/
111/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 13TH MARCH 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>BABA
AVIO FOR PLAINTIFFS/ APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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BLISS NII AMARTEI FOR DEFENDANTS/ RESPONDENTS<o:p></o:p>

</div>CORAM:<o:p></o:p>MARFUL-
SAU JA (PRESIDING), ACQUAYE JA, SAEED GYAN JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>MARFUL-
SAU, JA:- <o:p></o:p>The fundamental issue raised
in this appeal is whether or not the Appellant’s father was gifted the land the
subject matter of the dispute by Ga Mantse, Nii Tackie Tawiah I in or about the
year 1870.&nbsp; The appellant’s case which
was rejected by the trial court as not proved, was that the land in dispute situate
at Kpobiman was gifted to his late father Kofi Azie.&nbsp; According to the appellant his father who was
a herbalist healed Ga Mantse, Nii Tackie Tawiah I of a disease and as an
appreciation he was gifted the land in dispute.<o:p></o:p>The appellant contended that
after the death of Kofi Azie his son Vodo Azie was appointed head of family and
it was during his reign that the 1st respondent’s mother called
Prophetess Maa was granted a parcel of land to build on.&nbsp; In 2003 the appellant who succeeded Vodo Azie
as head of family noticed that the 1st respondent was alienating
land belonging to the Kofi Azie family hence this action.<o:p></o:p>The 1st respondent
on the other hand contended that the land in dispute is owned by the Nii Okai
Mensah Family and it was that family that granted the land to his mother Prophetess
Maa on which she built an eleven bedroom house.&nbsp;
1st respondent stated further that he was the caretaker of
the Nii Okai Mensah land and has been dealing with Theophilus T. Tackie Yarboi who
was once head of the Nii Okai Mensah family.&nbsp;
<o:p></o:p>The 2nd respondent
who applied to join the suit asserted that the land in dispute was for Nii Okai
Mensah family having acquired same by settlement in or about 1800 and founded a
village thereon.&nbsp; 2nd respondent
contended that it was his family that granted the land to 1st respondent’s
mother and also appointed 1st respondent as overseer of Nii Okai Mensah family
land.<o:p></o:p>As stated above after the
trial the court entered judgment for the 2nd respondent on his
counterclaim and dismissed the claim of the appellant.&nbsp; Dissatisfied with the said judgment the
appellant has mounted this appeal on the following grounds:-<o:p></o:p>“1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The trial Judge erred when he placed the
burden of proof on the plaintiff when in the pleadings defendant admitted the
Plaintiff’s late father’s long undisturbed possession of the land in dispute
but pleaded that he was their licencee.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The trial judge erred in law when he
failed to invoke and apply the principles of priority of interest as between
the plaintiff and the defendants who were relying on the same land document.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The 2nd Defendant who
applied and was joined to the case and counterclaimed failed to prove his
capacity and the order joining him ought to have been discharged and his
counterclaim dismissed.<o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Judgment was against the weight of
the evidence.<o:p></o:p>The
appellant subsequently filed three additional grounds as follows:-<o:p></o:p>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The learned trial judge erred in law when he
failed to apply the relevant cogency test to the evidence of the defendants and
their witnesses regarding the circumstances under which Kofi Azie was in
occupation and possession of the land since at the time of the trial, Kofi Azie
was deceased and legally a high degree of cogency is required.<o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The learned trial Judge erred in law when he
relied on self-serving correspondence by the Defendants as prove of their claim
whereas those correspondences were controverted under cross examination and no
independent corroborative evidence was offered by the defendants despite their
references to such independent witnesses.<o:p></o:p></</main>